Punjab-Haryana High Court
Ram Chand Premi vs Nawab Kaur on 3 December, 2003
Equivalent citations: (2004)137PLR422
JUDGMENT M.M. Kumar, J.
1. This is a plaintiff's appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity the Code) challenging concurrent findings of facts recorded by both the Courts below holding that the plaintiff-appellant has been in illegal possession and he had occupied the suit premises and by taking advantage of the absence of the defendant-respondent, which lasted for 9-10 months preceding the filing of the suit. Under Issue No. 3A, it has further been held that plaintiff-appellant had failed to produce any material document showing that he is tenant in the building and in the absence of any proof, no relationship of tenant and landlord was established. Accepting the counter claim set up by the defendant-respondent seeking a decree for possession and rejecting the plea of the plaintiff-appellant, both the courts below have held that defendant-respondent never interfered in the possession of the plaintiff-appellant. Accordingly, the suit of the plaintiff-appellant seeking permanent injunction against the defendant-respondent was dismissed and the counter claim preferred by the defendant-respondent was accepted. A decree for possession of the premises in dispute was passed in favour of the defendant-respondent and against the plaintiff-appellant.
2. The case set up by plaintiff-appellant in the civil suit No. 799 of 10.6.1988/ 5.11.1986 is that he is entitled for permanent injunction to restrain defendant-respondent from dispossessing him forcibly and also from causing any interference in his possession in the premises in dispute. He claimed that he is in possession of the suit premises as a tenant on payment of monthly rent of Rs. 150/- since the year 1979 and has been living there with his family. It was further claimed that he is running business of cycle shed and tea stall over the suit premises under the name and style of Premi Tea Stall. In proof of his claim, he has placed reliance on the ration card and the voter list stating that the same have been issued on the above said address in official record. He claims to be paying regular rent to the defendant-respondent and the payment of rent upto 31.8.1986 is alleged to have been made. However, it has been admitted that neither there is any rent note having been reduced to writing nor the defendant-respondent had ever issued any rent receipt in respect of payment of rent by plaintiff-appellant to the defendant-respondent.
3. Further allegations were that out of greed of raising the rate of rent, the defendant-respondent was holding out threats to him to increase rent from Rs. 150/- to Rs. 300/- or to vacate the suit premises, falling which the plaintiff-appellant was to be forcibly dispossessed. It has further been alleged that the defendant-respondent with the assistance of anti social elements of the area had come on the premises on 4.10.1986 and same threats were repeated. Despite request made by the plaintiff-appellant, the defendant-respondent has not stopped her illegal activities.
4. The defendant-respondent in her written statement has averred that the defendant-respondent had two sons and a daughter namely S/Shri Ashok Kumar and Krishan Kumar and Ms. Shakuntla, who had been running a school in the suit premises upto the year 1985. After the closer of the school premises, her sons had started school known as Maharaja Public School in Chawla Colony. It is further alleged that by taking advantage of the helplessness of the defendant-appellant, who is a female and living in the village . Atali, the plaintiff-appellant forcibly took possession of the suit premises 9-10 months back preceding the filing of suit. She prayed for recovery of possession and for that purpose has also filed a counter claim. It has been denied that the plaintiff-appellant has ever been inducted as a tenant by the defendant-respondent in the suit premises on payment of monthly rent of Rs. 150/-. It has also been controverted that the plaintiff-appellant is living in the premises with his family and doing the business of cycle shed or a tea stall. The question of payment of rent could never arise once he was in relationship of landlord and tenant. The allegations of threats to the plaintiff-appellant to increase the rent from Rs. 150/- to Rs. 300/- per month or forcibly occupation of the suit premises by the defendant-respondents have also been controverted.
5. A counter claim has been set up by the defendant-respondent that in fact the plaintiff-appellant is in illegal possession of the suit premises for the last 9-10 months preceding the filing of suit and that she was entitled to take back the possession. It has further been claimed that repeated requests made by the defendant-respondent to the plaintiff-appellant have proved futile.
6. A replication has also been filed alongwith the reply to the counter claim set up in the written statement. It has been asserted that the defendant respondent is a strong lady and a leader type of woman. It has further been asserted that she is supported by a larger number of supporters and to dispossess the plaintiff-appellant, the defendant-respondent could adopt any illegal means. He has further denied that the defendant-respondent is owner of the suit premises or her sons had ever opened a school there. The other facts have been reiterated by taking the objection that the market value of the suit premises is not less than Rs. 1.00 lac and Court fee accordingly on the counter claim should be paid.
7. On the pleadings of the parties, the following issues were framed:-
"1. Whether the plaintiff is in illegal possession of the premises, if so, from what time? OPD
2. Whether the plaintiff is liable to vacate the premises? OPD
3. Whether the defendant forcibly and illegally interferes in the possession of the plaintiff?
3-A. Whether the plaintiff is in possession of the property in question as a tenant under the defendant as alleged in the plaint? OPP.
On issue No. I and 3-A, the findings recorded by both the Courts below are that the relationship of landlord and tenant could not be established by the plaintiff-appellant as no material evidence to that effect has been produced. It has further been held that the possession of the plaintiff-appellant over the suit premises is illegal and that he had entered into the possession of the premises by taking advantage of the absence of the defendant-respondent for 9-10 months before filing of the suit. Accordingly, issue No. 1 was decided in favour of the defendant-respondent and against the plaintiff-appellant. Similarly, issue No. 3-A was decided against the plaintiff-appellant and in favour of the defendant-respondent. On issue No. 2 also the findings recorded are against the plaintiff-appellant holding that he is liable to vacate the premises. As no evidence was led with regard to forcible interference in the possession of the plaintiff-appellant by the defendant-respondent, issue No. 3 too was decided against the plaintiff-appellant and his suit was dismissed. The counter claim made by the defendant-respondent was accepted by passing a decree for possession in respect of the suit premises in favour of the defendant-respondent.
8. The judgment and decree dated 11.10.1989 passed by the Additional District Judge was challenged before this Court in appeal. This Court vide its order dated 8.2.1990 in RSA No. 2483 of 1989 allowed the appeal and remanded the case back to the Additional District Judge on account of the fact that the Additional District Judge in his judgment dated 11.10.1989 had made a reference to unexhibited documents for arriving at the findings under issues No. 1 and 3-A. The Additional District Judge has again dismissed the appeal vide his judgment and decree dated 12.3.1990 and held as under:-
"10. After hearing the learned counsel for the parties on the application for additional evidence, I am of the view that at this stage, this additional evidence cannot be allowed. The appellant-applicant had moved similar application before the Hon'ble High Court (which fact is admitted by the learned counsel for the appellant) and the same seems to have been pressed because nothing has been said about it in the order of the Hon'ble High Court dated 8.2.1990. Besides the above, it cannot be said that this application was filed by Smt. Nawab Kaur admitting Ram Chand to be the tenant on the premises in dispute. Neither the name of Ram Chand nor the description of the premises in dispute has been mentioned in the application. I am also of the view that the signatures on this application are not of Smt. Nawab Kaur. I have tallied the signatures of Smt. Nawab Kaur on this complaint with her signatures on the written statement dated 27.10.1986 filed in the trial Court as also on the reply to the application under Order 39 Rules 1 and 2 CPC dated 27.10.1986 filed in the trial Court and in my view, both the signatures are different. The application for permission to lead additional evidence, at this stage, is rejected.
Submitting on merits, learned counsel for the appellant has submitted that since his possession is admitted on the premises in dispute and the tenancy can be created by oral agreement also, therefore, onus is upon the respondent to prove that he was not occupying the premises as a tenant. I do not see any force in this submission. It is for the appellant-plaintiff to prove that his possession is of a tenant and a specific issue No. 3-A had been framed and the onus is upon the appellant-plaintiff. The case of the appellant-plaintiff is that he was in possession of the premise's as a tenant since 1979 while the respondent-defendant had pleaded that previously a school was being run in the premises by his sons Ashok Kumar and Kishan Singh which was closed down near about 1985 and thereafter taking the benefit of the absence of the respondent-defendant, Ram Chand occupied the premises in dispute. Ram Chand appeared as PW-3 and in cross-examination he has submitted that previously a school was being run on the premises in dispute. While denying the suggestion that the school is closed for the last 2 years, he stated that the school is closed since 1982. The document Ex.D1, which is certified copy of the order dated 26.5.1982 passed by Shri Surrender Kumar, Sub-Judge III Class, Faridabad, as he then was, also prove that a school was being run by Ashok Kumar and Kishan Singh sons of Dil Mohar Singh (Oil Mohar Singh is husband of Smt. Nawab Kaur) upto 25.5.1982 atleast because the address given of Ashok Kumar and Kishan Singh is of Maharaja Nahar Singh Public School. A combined reading of the statement of Ram Chand PW3 and of document Ex.D1 goes to prove that previously atleast upto 1982 a school was being run in this very premises and as such the plea of Ram Chand that he came into possession of the premises in dispute in the year 1979 as a tenant is falsified. It is also relevant to point out here that not a single receipt has been produced on record by Ram Chand and he has simply stated that no receipt was given by Smt. Nawab Kaur and that he never made any complaint about it. It is interesting to note that the original suit was filed by Ram Chand seeking mandatory injunction restraining Nawab Kaur from interfering in his possession and from dispossessing him except under the provisions of Haryana Urban (Control of Rent and Eviction) Act. It is not understandable as to why this suit was filed by Ram Chand because had he been a tenant, then this plea could have easily been taken by him in the suit for possession filed by Smt. Nawab Kaur.
12. In my view, none of these documents support the arguments advanced by the learned counsel for the appellant. Licence Ex.PW4/1 was issued on 17.7.1985 while Ex.PW4/2 for the year 1984-85 was issued on 7.9.1984. As discussed by the learned trial Court, the premises to which it relate is not mentioned, PW4 Gopi Chand Licence Clerk has stated that he is unable to say as to which is the disputed place and that in the register, neither the property number nor its boundaries have been mentioned. Even if for the sake of arguments, this document is considered, still the earliest possession of the appellant-plaintiff can be said to be from September 1984 and not from 1979. There is no evidence to prove that he is occupying the premises as a tenant."
9. Mr. H.S.Giani, learned counsel for the plaintiff-appellant has raised the following two questions in the instant appeal:
a) that detailed evidence adduced by the plaintiff-appellant has not been considered correctly, which has resulted into manifest injustice to the plaintiff-appellant and in view of the judgments of the Supreme Court in Kulwant Kaur v. Gurdial Singh, (2001-2)128 P.L.R. 492 (S.C.) : 2001(4) S.C.C. 262, and Rohini Prasad v. Kastur Chand, 2000(3) S.C.C. 688, this Court is competent to correct that error and it has to be considered as to question of law.
b) that the application filed by the plaintiff-appellant under Order 41 Rule 27 has been illegally dismissed. The learned counsel has argued that by way of additional evidence, the plaintiff-appellant wanted to produce on record an application moved by defendant-respondent before the electricity board during the pendency of appeal on 13.10.1989 admitting the plaintiff-appellant to be her tenant. As the evidence sought to be adduced go to the root of the case, his application could not have been rejected and in accordance with the judgment of the Supreme Court in the case of Billa Jagan Mohan Reddy v. Billa Sanjeeva Reddy, 1994(4) S.C.C. 659, such an application was liable to be accepted. The learned counsel has also contended that the court cannot assume the role of expert and could not have rejected the application by opining that signature on the document differed from the admitted signature of defendant-appellant. In support of his submission, the learned counsel has placed reliance on a judgment of the Supreme Court in the case of Billa Jagan Mohan (supra).
10. The learned counsel has also argued that PWs 5, 6 and 7 have given adequate support to the case of the plaintiff-appellant inasmuch as they have stated that they had seen passing of payment of rent between the plaintiff-appellant as well as the defendant-respondent.
11. Mr. Shiv Kumar, learned counsel appearing that the defendant-respondent has argued that the documents Ex.PW4/A dated 17.7.1985 and Ex.PW4/B dated 7.9.1984, which are receipts for payment of licence fee to Municipal Committee pertaining to the years 1985-86 and 1984-85. The licence was granted to the plaintiff-appellant for manufacturing and sale of tea. The learned counsel has further argued that Ram Chand, plaintiff-appellant, who had appeared as PW3 had himself admitted that sons and daughters of the defendant-respondent had been running the school in the suit premises upto the year 1982 and PW4 Khem Pal examined by the plaintiff-appellant had stated that he had never-seen any school functioning in the suit premises. It has also been pointed out that on document Ex.P1 which is a ration card issued by the Food and Supplies Department, the address of the plaintiff-appellant given is Ram Chand s/o Lekh Raj, Bus Stand and in the record of the Food and Supplies Department, his address is near Bus Stand, Shiv Sharad Colony, near Railway Station, Tea Shop, Ballabhgarh. Simitar is the position with regard to other documents Ex.PW/A and Ex.PW4/B, which are the receipts issued by the FCA Ballabgarh in respect of payment of licence fee for running the tea stall. According to the learned counsel, once evidence has been appreciated in a particular way by the Courts below, this Court under Section 100 of the Code would not be entitled to re-appreciate the evidence for the purposes of reaching a conclusion other than the one recorded by the Courts below. In support of his submission, the learned counsel has placed reliance on a judgment of this Court in the case of Darshan Kumar Sharma v. Vimal Bansal, (2003-3)135 P.L.R. 887.
12. The learned counsel has further argued that in order to prove the tenancy, two ingredients are required to be proved namely possession as well as the payment of rent. There is no document on the record showing the payment of rent, nor there is any evidence showing the lawful possession of the plaintiff-appellant. Therefore, the oral evidence rebutted by the oral statement of the defendant-respondent would not be sufficient to record a conclusion about the relationship of landlord and tenant. In this regard, the learned counsel has placed reliance on a judgment of this Court in the case of Jagdish Singh v. Balwant Singh, 2003(2) R.C.R. (Civil) 227.
13. The learned counsel has also controverted the statement of the plaintiff-appellant on the application filed under Order 4! Rule 27 and has supported the order passed by the learned Additional District Judge. According to the learned counsel, similar application filed under Order 41 Rule 27 was dismissed by the High Court and the plaintiff-appellant in order to procure delay did not press the same, which should be deemed to have been dismissed. The learned counsel further submitted that the stand of the defendant-respondent with regard to the application to the Electricity Board and which is sought to be produced as additional evidence is that the same has been fabricated by the plaintiff-appellant and in the reply this was the stand taken by her. In support of his submission, the learned counsel has placed reliance on a judgment of this Court in the case of Youdhister v. Siri Ram, 1996 P.L.J. 41. and argued that it is discretion of the Court to allow additional evidence at the appellant stage and this remedy cannot be used to fill up the lacuna. The learned counsel has further, submitted that this cannot be claimed as a matter of right.
14. After hearing the learned counsel for the parties, I am of the considered view, that this appeal lacks merit and the same is liable to be dismissed. It is well settled that certain essential features would have to be proved before it could be assumed that there is relationship of landlord and tenant. It necessarily involves the existence of a contract in the form of lease deed or any circumstantial evidence showing that such a contract was in existence. It further requires that possession of the immovable property should be proved by the tenant in his capacity as such on payment of rent. A reference in this regard can be made to Section 105 of the Transfer of Property Act, 1882. However, in the present case, no material has been placed on record to substantiate the claim that the appellant was a tenant and the respondent was his landlady. There is no lease deed or rent note placed on the record which could have been a direct piece of evidence establishing the fact of relationship between the appellant and respondent. No rent receipt has been proved on the record. Alt that has been brought on record is the statements of witnesses produced by the plaintiff-appellant which have been controverted by the witnesses of the defendant-respondent. The veracity of the oral statements made by the witnesses of the plaintiff-appellant has been controverted by the statement made by the witnesses of the defendant-respondent. In such a situation, no finding could be recorded to conclude the relationship of landlord and tenant between the parties. In somewhat similar circumstances, this Court in the case of Jagdish Singh (supra) has held that such evidence is wholly insufficient, and in fact no evidence of the fact that there is relationship of landlord and tenant.
15. I am further of the view that this Court cannot undertake the task of re-appreciating the evidence and to reach a conclusion different than the one recorded by both the Courts below as has been repeatedly held by the Supreme Court. Therefore, the first question raised by the learned counsel for the plaintiff-appellant that non-appreciation of evidence adduced by the plaintiff-appellant by the Courts below has resulted into manifest injustice cannot be accepted. It is pertinent to mention that the evidence Ex.P1, PW4/A and Ex.PW4/B has also been correctly appreciated because it does not establish the fact of tenancy or even of possession.
16. The question of additional evidence under Order 41 Rule 27 of the Code especially at the appellate stage has also been rightly considered by the Ld. Addl. District Judge because already an application was filed before this Court and the same was not pressed. I am further of the view that the plaintiff-appellant had adopted that course with a view to delay the final adjudication on the controversy. Moreover, the document which has been sought to be adduced in evidence under Order 41 Rule 27 of the Code has been considered by Ld. Addl. District Judge and on a visual comparison of signatures it has been found to be unacceptable. The signatures on the document namely an application filed by the defendant-respondent to the electricity board have been found to be different than the admitted signatures. Therefore, the discretion exercised by the Ld. Addl. District Judge cannot be considered to be unlawful.
17. The argument of the learned counsel based on the judgment of the Supreme Court in Billa Jagan Mohan's case (supra) cannot be accepted because in that case the document sought to be produced by way of additional evidence was rejected merely on the ground of delay. It has been observed that if the document has been found to be relevant to decide the real issue raised the documents may be received in evidence by exercising power under Order 41 Rule 27 of the Code then the appellant Court would be at liberty to accept the documents. However, in the present case, the document has been found to be prima facie inadmissible for the reasons that the signatures on the documents differed from the admitted signatures of the defendant-respondent. Moreover, when RSA No. 2483 of 1989 was filed before this Court an application for adducing of additional evidence to produce the same document was made before this Court and the. same had not been pressed which would lead to an inference that the plaintiff-appellant was not interested in the afore-mentioned application. Still further, it is unbelievable that a landlady would admit the tenancy in respect of a premises which is subject matter of litigation and already a judgment in her favour existed. The argument that the Court should not act as an expert and it should have been given an opportunity and to the plaintiff-appellant to prove the signatures of the defendant-respondent has failed to impress me. Therefore, I do not find any merit in the aforementioned submission of the learned counsel for the appellant.
For the reasons stated above, this appeal fails and the same is dismissed.